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What's Terrorism Got to Do with It? The Perils of Prosecutorial Misuse of Terrorism Offenses

Federal and state legislation does not contain explicit “terrorism” offenses per se. Instead, various criminal provisions prohibit a wide array of specified crimes that are commonly perceived as terrorism-related crimes. While these offenses do not make the definition of terrorism an element of the crime, the terrorism classification is inferred based on features that typically – though not necessarily -- characterize crimes of terrorism, such as the scope of the harm intended or inflicted and the nature of the technical measures used to carry out the attack. These offenses, however, are too broad and ambiguous, covering a wide variety of crimes unrelated to the terrorism context.

The Article’s key thesis is two-pronged: It suggests that empirically, the criminal justice system has failed to accurately distinguish between “terrorism” and “ordinary” crime. This failure may be attributed both to a doctrinal problem of definition: the distinct features of terrorism, mainly the defendant’s political motivation, are not made elements of the offense, and to an institutional problem of misclassification: unlimited prosecutorial discretion enables prosecutors to misuse terrorism-related offenses in cases that are unrelated to terrorism. Furthermore, the Article contends that normatively, drawing clear legal boundaries between “ordinary” crime and terrorism is a warranted enforcement policy, due to the numerous implications of misclassification. The Article examines the risks and unintended consequences of existing prosecutorial practices, ranging from treating similarly situated defendants differently to opening the door to additional applications of terrorism-related offenses in contexts such as drug trafficking.

To alleviate these concerns, the Article proposes legislative reform designed both to constrain prosecutorial discretion and to limit the use of terrorism-related offenses only to actual crimes of terrorism by making specific intent to coerce governments to change their actions and policies a necessary element of terrorism crimes.